Supreme Court's decision reshapes battle over Obama energy plan

David Conti
| Wednesday, Feb. 10, 2016, 11:00 p.m.

The Supreme Court's delay of the Obama administration's plan to cut carbon pollution from the power sector threatens to shift the burden of defending the regulation to a successor in the White House who could have less zeal for reducing greenhouse gas emissions.

The decision by the justices to block implementation of the plan while a challenge is still working its way through lower courts was unusual and signals how they might view the merits of the case.

“Some would make the case that the rule is effectively killed, because this is such an unprecedented move for the Supreme Court to reach down and effectively block a regulation that hasn't come to them,” said Kevin Sunday, government affairs manager for the Pennsylvania Chamber of Business and Industry, a critic of the so-called Clean Power Plan. “We're a couple years away from a final Supreme Court ruling, so it appears the next administration will have to reconfigure the plan.”

In a 5-4 decision late Tuesday, the court approved a request by states and industry leaders suing the government to stay the rule's enactment until all legal challenges are settled. In arguing against the delay — which a lower court denied weeks ago — Department of Justice lawyers called such a stay unprecedented.

Some states and a coal industry suffering from low demand and prices have fought back against what they consider an overreach by the Environmental Protection Agency.

GOP attacks on the rule — and on Obama's intention to make fighting climate change part of his legacy — cast doubt on whether the Justice Department would continue to defend it in court if a Republican wins the presidential election in November. Getting the court to block the rule temporarily before it is implemented is an important win for opponents because dialing back a regulation that has taken effect is difficult.

The court in June rebuked the EPA's process of writing separate mercury pollution rules for power plants that took effect in 2012 but allowed the regulation to stand. Industry leaders said the ruling came too late to save coal-fired plants that closed to meet a regulation that turned out to be flawed.

Environmental groups that decried this week's Supreme Court action on the carbon plan said they still expect the White House to act on mounting international pressure to cut greenhouse gas pollution.

“Whoever becomes president will face that conflict,” said Larry Schweiger, CEO of advocacy group PennFuture, who believes the Supreme Court “prematurely jumped over the process to put the block on this.”

He and others expressed concern that a delay will imperil the credibility of the United States to lead on climate change just months after an international agreement was struck in Paris. Nearly 200 countries agreed in December to cut or limit heat-trapping greenhouse gases to limit the worst-predicted impacts of climate change. Each nation set its own goals under the treaty, and Obama committed the United States to make a 26 percent to 28 percent cut in emissions by 2030, in line with the now-delayed plan.

The Clean Power Plan directs states to cut carbon dioxide emissions from power plants by varying degrees over the next 15 years; Pennsylvania's target is a 32 percent reduction. States must hit reduction goals starting in 2022, but need to have their plans for achieving those targets approved by the EPA long before then. Pennsylvania officials have said they were trying to meet a September deadline for submitting an implementation plan, though the EPA has offered extensions to all states.

Coal-fired electricity generation, once the backbone of the nation's grid, is expected to be further reduced to achieve the plan's target. That raised the ire of some coal-heavy states and the industry. Two dozen states joined with coal groups in suing the government to block the rule.

Environmental groups called on Pennsylvania to keep working toward the September goal with the hope that the Supreme Court would eventually uphold it.

“The state would make a huge mistake to stop and wait for further action based on this court action,” Schweiger said.

Pennsylvania did not join in any lawsuits, and Gov. Tom Wolf's administration has shown support for the plan and for reducing greenhouse gas emissions. When asked whether the stay changes its approach, the Department of Environmental Protection said in a statement: “Pennsylvania will continue planning and engagement with stakeholders on the Clean Power Plan, pending final decision of this issue by the Supreme Court. We will continue to closely monitor the ongoing legal process.”

The department did not respond to further questions.

The business chamber and others who asked Wolf's administration to seek the EPA's extension said the court's delay offers an opportunity to “press pause” and look for ways to reduce expected costs, such as higher electric bills.

“The Supreme Court has recognized that the Clean Power Plan could cause irreparable harm to this country's citizens, economy and energy sector,” Pennsylvania Coal Alliance CEO John Pippy said in a statement. “This decision reinforces the importance of Pennsylvania taking its time in voluntary early compliance with overreaching regulations on industries such as energy where state primacy has presided.”

The Associated Press contributed. David Conti is assistant business editor at the Tribune-Review. Reach him at 412-388-5802 or dconti@tribweb.com.

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